Apparent bias

Labour & European Law ReviewWeekly Issue 46728 April 2016

When hearing cases, tribunal judges must be objective and impartial. In Nawaz v Docklands Buses Ltd, the Employment Appeal Tribunal (EAT) held that the tribunal judge had behaved in a way that gave rise to apparent bias so that a “fair-minded observer” would conclude that there was a real possibility of bias.

Mr Nawaz’s union, RMT, instructed Thompsons to act on his behalf.

Basic facts

Mr Nawaz, who had worked as a bus driver for the company since 2007, was dismissed in March 2013. He brought claims that he had suffered a detriment (disadvantage) contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 as well as unfair dismissal, including an allegation of automatic unfair dismissal on the grounds of trade union activities and membership.

The hearing started on 17 September 2014 and continued until 19 September. However, at the end of the second day (18 September), Mr Nawaz made an application that the judge should recuse (remove) herself on the ground of apparent bias.

Tribunal decision

The three members of the tribunal panel – relying on the contemporaneous notes that they had made during the two days of the hearing - decided to refuse the application, holding that it was not “well founded”.

Mr Nawaz appealed, arguing that the tribunal had failed to take note of the test in East of England Ambulance Service NHS Trust v Sanders which states that tribunals must consider whether a “fair-minded and informed observer”, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

EAT decision

The EAT agreed that although there was no suggestion of actual bias, the tribunal judge had behaved in a way that gave rise to apparent bias. As a result, a fair-minded observer who was informed of all the relevant facts would conclude that there was a real possibility of bias.

In particular the EAT drew attention to the nature and quality of some of the questions that the tribunal judge had asked during the cross-examination of Mr Nawaz. It did not think that the questions she asked were designed to elicit clarification of his evidence, but rather to put points to him that he would not necessarily agree with, “with a view to trying to persuade him that he should agree”.

It was particularly concerned by one interception when the judge accused Mr Nawaz’s barrister of trying to intimidate the tribunal members. Relying on the contemporaneous notes of a number of those present at the time, the EAT concluded that far from the barrister trying to intimidate the tribunal, it was the tribunal that was trying to put pressure on Mr Nawaz “in a way that the informed and fair-minded observer would regard as unfair”.

In the words of the Court of Appeal in Yuill v Yuill, the judge had, by getting involved in the cross-examination, “descended into the arena” and allowed her vision to be clouded by “the dust of the conflict”. By contrast, the paramount concern of the legal system must be to administer justice which was seen by litigants and fair-minded members of the public, to be fair and impartial. “Anything less is not worth having”.

Comment

This case is important because it highlights an important legal principle - that not only must justice be done, it must also be seen to be done.